Opinion
No. 3-020 / 02-0372
Filed February 12, 2003
Appeal from the Iowa District Court for Polk County, Arthur E. Gamble and Robert J. Blink, Judges.
Defendant appeals his conviction and sentence, following a jury trial, for conspiracy to deliver more than five grams of methamphetamine, and possession of more than five grams of methamphetamine with intent to deliver, in violation of Iowa Code section 124.401(1)(b)(7) (2001); failure to affix a tax stamp, in violation of sections 453B.3 and 453B.12; and possession of marijuana, in violation of section 124.401(5). REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, John Sarcone, County Attorney, and Stephanie Cox, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
Defendant-appellant, Jerry Coles II, appeals his conviction and sentence, following a jury trial, for conspiracy to deliver more than five grams of methamphetamine, and possession of more than five grams of methamphetamine with intent to deliver, in violation of Iowa Code section 124.401(1)(b)(7) (2001) (Counts I and II); failure to affix a tax stamp, in violation of sections 453B.3 and 453B.12 (Count III); and possession of marijuana, in violation of section 124.401(5) (Count IV). Defendant argues on appeal (1) the trial court erred in denying his motion to suppress evidence, (2) his trial counsel rendered ineffective assistance, and (3) the trial court erred in the manner in which it merged his sentences on Counts I and II. We reverse and remand for further proceedings.
I. BACKGROUND FACTS AND PROCEEDINGS
Defendant resided in a camper parked on the property of Edward Bowers. On September 29, 2001, Des Moines Police received a complaint about an illegally parked car blocking an alley. Officer Matthew Hunter responded by inquiring about the car at Bowers's home, located in front of the alley. Bowers told Officer Hunter the car belonged to the person living in the camper parked in his backyard. As Officer Hunter was speaking with Bowers, defendant came out of the camper and indicated the car was his mother's. In speaking with defendant, Officer Hunter noticed track marks on his arms and asked about them. Officer Hunter testified defendant became very agitated and said the marks were from donating blood. After Officer Hunter requested defendant move the vehicle, defendant indicated the keys were in his camper and proceeded into the camper to get them. Officer Hunter testified that, out of concern for his own safety given defendant's "highly agitated" state, he followed defendant into the camper, apparently going up two or three steps and then standing in the doorway to watch him. Defendant told Officer Hunter he had no right to be in the camper. Officer Hunter then walked back down out of the camper, and defendant exited the camper after him.
Upon obtaining defendant's identification and discovering there was a warrant out for his arrest, Officer Hunter took defendant into custody, placing him in handcuffs. By this time Officer Boone had arrived to offer backup support. According to testimony defendant remained agitated, stating his girlfriend, later identified as Marrita Benshoof, was still in the camper, and shouting to her about what was happening outside. There was no answer, so Officer Hunter knocked on the camper door. Again there was no answer, so he opened the door and called to her. Still hearing no answer, he stepped up one step in the camper, looked inside and saw her lying on a bed. According to Officer Hunter's testimony, she remained motionless and did not respond even as he called to her several times. Officer Hunter testified he was concerned she had a medical condition or was unconscious. He went inside the camper and back toward the bed to check on her "health and welfare." Officer Boone accompanied Officer Hunter into the trailer. Officer Boone testified upon turning the corner into the camper he observed a syringe on the microwave. He also observed a black wallet containing what was later determined to be marijuana and methamphetamine, as well as about $210 in cash. Next to the wallet he observed a bag of syringes. When Officer Hunter approached Ms. Benshoof she "woke up." She gave him her name, and he discovered she, too, was wanted on warrants. Officer Hunter testified he then placed her into custody and checked the area immediately surrounding her for weapons. On a table next to the bed, he noticed a large black zipper pouch with several baggies sticking out. He picked up the pouch and discovered a substance in several of the baggies which he believed to be methamphetamine. He also discovered a green, leafy substance he believed to be marijuana.
Officers Hunter and Boone then left the camper with Ms. Benshoof and kept defendant and Benshoof in their custody. Several narcotics officers arrived on the scene. Before the two were transported to jail, Officer Boone searched defendant's person and found over $1200 in cash.
At the jail after being read his Miranda rights, defendant agreed to an interview and confessed to having the drugs for both personal use and sale. He also made reference to a small locked medicine box in the bathroom containing prescription drugs not prescribed to him. Officers conducting a search of the camper following defendant's consent found a plastic medicine box in the bathroom containing drug paraphernalia, marijuana, and methamphetamine. They also found a jewelry box containing methamphetamine and a piece of paper with numbers on it which Officer Hickey testified were consistent with drug dealing.
At trial defendant admitted the drugs in the medicine box were his but claimed the drugs in the black pouch and black purse were Ms. Benshoof's. Defendant claimed the reason he had become agitated when talking with Officer Hunter was because Officer Hunter had threatened to shoot his dog, who was barking but chained up, and he feared the officer would carry out his threat. Defendant further asserted he had asked Officer Hunter not to enter his trailer because his girlfriend was sleeping and possibly undressed, and the money found on him came from his babysitting job and a loan from his father. Defendant additionally testified he had falsely admitted to drug dealing in order to protect Ms. Benshoof from shouldering the blame for it and possibly losing custody of her child as a consequence.
On appeal defendant challenges the trial court's denial of his motion to suppress. Drawing upon the emergency aid exception to the warrant requirement, the trial court concluded,
In this case, the officers observed track marks on the defendant and he became agitated when questioned. Further, he indicated that his girlfriend was in the camper, but no one responded when the officer knocked and called out. It was proper for the officers to enter for the sole purpose of determining if the defendant's girlfriend was present and in need of assistance.
II. SCOPE OF REVIEW
Our review of the district court's denial of defendant's suppression motion is de novo. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). We "make an independent evaluation of the totality of the circumstances as shown by the entire record." Id. (quoting State v. Howard, 509 N.W.2d 764, 767 (Iowa 1993)). We give deference to fact-findings of the district court due to its opportunity to observe the witnesses and assess their credibility, but we are not bound by those findings. Id.
The Fourth Amendment of the United States Constitution as well as Article I, Section 8 of the Iowa Constitution protect citizens against "unreasonable searches and seizures," thereby safeguarding the privacy and security of individuals against arbitrary invasion by government officials. State v. Carlson 548 N.W.2d 138, 140 (Iowa 1996) (citing Michigan v. Tyler, 436 U.S. 499, 504, 98 S.Ct. 1942, 1947, 56 L.Ed.2d 486, 495 (1978)). With few exceptions, warrantless searches are per se unreasonable. Carlson, 548 N.W.2d at 140 (citing State v. Emerson, 375 N.W.2d 256, 258 (Iowa 1985)). Unless the State demonstrates by a preponderance of the evidence that a recognized exception to the warrant requirement is applicable, evidence obtained through an illegal search is inadmissible. Carlson, 548 N.W.2d at 140.
One such recognized exception to the warrant requirement is the general community caretaking exception where courts recognize the right of a police officer to act without a warrant in situations where a warrant is otherwise required, in order to protect the public or rescue those in distress. Id. at 140-41. "Courts have noted that preservation of human life is paramount to the right of privacy protected by the Fourth Amendment." Id. at 141 (citation omitted). One subcategory of the community caretaking exception is the emergency aid exception. Id. at 141. The emergency aid exception is justified on the grounds that the underlying motivation for a particular intrusion is to preserve life rather than search for evidence to be used in a criminal investigation. Id. at 141. Notably, the emergency aid exception is subject to strict limitations. Id. at 141. In order to qualify under this exception the State must demonstrate that a reasonable person under the circumstances would have believed an emergency existed. Id. at 141-42. To establish "reasonableness," the police must offer specific and articulable facts indicating the propriety of their actions. Id. at 142.
III. ANALYSIS
We conclude the emergency aid exception is not applicable here, as the facts of this case support no more than unsubstantiated speculation that emergency aid may have been necessary.
At the suppression hearing Officer Hunter testified defendant had become agitated after he pointed out the track marks on defendant's arms. He further testified defendant had stated his girlfriend was in the camper, and defendant was shouting her name. Officer Hunter testified he then knocked on the door, opened the door, called to the girlfriend, looked in to see her motionless on the bed, became concerned there was something wrong with her, either "a medical condition or unconscious," and went back to check on her, whereupon she "finally responded and woke up." He then talked with her, got her name, and was able to determine there was a warrant out for her arrest.
There are no specific and articulable facts from the above account which would lead a reasonable person to conclude, even more likely than not, that defendant's girlfriend was in need of emergency aid. Ms. Benshoof was lying on a bed in her boyfriend's residence during early morning hours without responding to calls from outside. There is nothing inherently alarming in those facts.
Although the specific time of the events at issue does not appear to be in the record, the events must have occurred in the early morning hours. Testimony indicated the events occurred on September 29, and the time of defendant's consent at the police station was only "845 hrs" on September 29. Further, the officers involved in this incident were on the "third watch."
The State refers us to several cases in which the supreme court has recognized the community caretaking and, specifically, emergency aid exceptions. In State v. Mitchell, 498 N.W.2d 691, 693-94 (Iowa 1993) and State v. Moore, 609 N.W.2d 502, 504 (Iowa 2000) this exception was applied in cases where authorities stopped vehicles in the interest of the safety of the public at large. The State does not argue here, nor are there facts to support, that either defendant or Ms. Benshoof presented an immediate threat to the public at large requiring intervention by the officers. Similarly, in State v. Kersh, 313 N.W.2d 566, 568-69 (Iowa 1981), abrogated on other grounds by State v. Lake, 476 N.W.2d 55, 56 (Iowa 1991), the exception was applied where authorities, having heard reports of an intoxicated driver parked with his bumper jutting into the street, and subsequently finding the defendant unresponsive and slumped behind the wheel of his car, opened the defendant's car door. In the case at hand we have no public threat of unsafe driving requiring intervention. Furthermore, it would be reasonable to conclude an individual slumped behind the wheel of a vehicle fully visible to the public who is unresponsive likely needs emergency aid, but it would not be reasonable to draw the same conclusion about a similarly unresponsive individual lying in bed in a private residence during the early morning hours.
The emergency aid exception has also applied in cases where authorities investigate scenes, without a warrant, out of concern for the welfare of the individuals there. In State v. Vincik, 436 N.W.2d 350, 353 (Iowa 1989) and State v. Emerson, 375 N.W.2d 256, 258-59 (Iowa 1985), police entered residences to render emergency aid to suspected victims because they had been called to the scene by individuals claiming terrible injuries or accidents. In this case there was no such report of injury or accident which might indicate Ms. Benshoof's unresponsiveness was cause for alarm. Finally, in Carlson, 548 N.W.2d at 142-43, police entered a residence out of concern for a victim who had been missing for two days. Her boyfriend had a history of domestic abuse, police observed unusual circumstances when they attempted to call upon him, and he made contradictory statements about the victim's whereabouts. Id. In the case at hand, we simply do not have such corroborating evidenceto lend credence to conjecture that Ms. Benshoof needed emergency aid. The only facts giving rise to the attempts to render "emergency aid" were that Ms. Benshoof was in bed and was not responding to others' calls. This simply does not beg emergency assistance. Consequently, we conclude the officers' warrantless entry into defendant's camper to check on his girlfriend was an unlawful search.
An unlawful search taints all evidence which was obtained in the search or through leads uncovered by the search. State v. Swartz, 244 N.W.2d 553, 555 (Iowa 1976) (citing Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 416, 9 L.Ed.2d 441, 453-54 (1963)). All of the evidence seized during the warrantless search should have been suppressed, as well as the evidence seized in the subsequent search of the camper, as this evidence resulted indirectly from the initial warrantless search, and qualifies as "fruit of the poisonous tree." See Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307, 312 (1939). Accordingly, we reverse defendant's conviction and order the suppression of all evidence seized during the officers' unlawful entry into defendant's camper, including (1) the black pouch and black purse and their contents, (2) the syringe on the microwave, and (3) the bag of syringes, as well as the evidence seized pursuant to the consent search, including (4) the medicine box, (5) the jewelry box and its contents, and (6) the slip of paper. We remand to the district court for further proceedings consistent with this opinion.
If the initial illegal search uncovering the black pouch, black purse, syringe on the microwave and bag of syringes had not been conducted, defendant likely would not have given his consent to the search of his camper in which the medicine box, jewelry box of methamphetamine, and piece of paper with alleged drug notations were found.
We find it unnecessary to address defendant's claims of ineffective assistance and erroneous merger in his sentence.